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How Much Can You Rely On Your Consultant's Lawyer?
HOW MUCH CAN YOU RELY ON YOUR CONSULTANT'S LAWYER? by Gary Lawson, JD, LLM, Bruce Campbell, JD, and Gavin Kahn, Esq. A common practice in business today is for companies to focus on the core of their businesses while hiring third parties or consultants to handle many ancillary activities. For example, businesses that do not specialize in investing hire third parties to make investment decisions for them. Still other companies hire consultants to assume the liability for risky activities. An example of an attempt to shift risk to consultants can be seen in the direct marketing business. Frequently, the direct marketing company ('the Company') relies upon consulting firms to review, if not structure, a variety of marketing programs and promotions. It is common for the direct marketing consultant to obtain a legal opinion from a law firm that is chosen by the consultant. The legal opinion usually sought is on whether the particular promotion satisfies some or all federal and state laws regulating such activity. It is common for the cost of the legal opinion to be considered an extra cost under the contract between the Company and the consultant, to be paid for by the Company. More often than not, the Company, the consultant, and the law firm know that the legal services are intended to benefit and be relied upon by the Company. Nevertheless, if there is a written agreement describing the legal services to be rendered, it is often between the consultant and the lawyer. And the Company is not a party to the agreement. If asked, many companies that hire consultants and pay the attorneys recommended by the consultants often express the belief that any legal opinion rendered concerning their company is an opinion on which they can rely. Moreover, these companies frequently believe that if the legal advice given falls below the standard of care-that is, constitutes malpractice- that the company receiving bad advice can sue the lawyer. Many companies are surprised to learn that the legal advice that they paid for will not serve as a basis for a claim, even if the lawyer committed malpractice. To gain an appreciation of how unusual this situation may seem to many companies today, a brief review of how tort law has evolved may be helpful. Prior to the 20th century, virtually all American courts refused to impose liability for negligence unless the injured party had a contractual relationship or was in privity with the party who injured him. Thus, if a manufacturer of 'widgets' put his product into the stream of commerce, he was only responsible to those with whom he was in privity (those who purchased his product from him directly). Gradually, the privity requirement was eroded. Early on in this evolution, manufacturers became liable to persons who bought their product from other parties who distributed the product through the chain of distribution. More recently, manufacturers have been held liable to persons who, although they did not buy the product in the stream of commerce, were injured by the product being used by someone who did purchase the product. While the privity requirement was being relaxed in the context of product liability, the courts also began to relax the privity requirement for certain services. Thus, accountants who were negligent in rendering an opinion that a company's financial statements accurately portrayed its financial condition could be held liable to investors in the company who could show that they made the investment on the basis of the erroneous financial information. For an accountant to be found liable in such a situation, the accountant would have to have been aware that the financial reports were to be used for a particular purpose, that a known party was intended to rely on the report, and that there was some conduct on the part of the accountant that linked him to that party and evidenced the accountant's understanding of that party's reliance.(1) Even though the privity requirement has been relaxed in cases brought against accountants, the courts have generally balked at relaxing the privity requirement for claims against lawyers. The courts have justified their adherence to the privity requirement on the basis that legal ethics require the lawyer to serve only his client. Thus, in most states, a lawyer may be found liable only to his client. The most frequently stated rationale for the privity requirement is that a lawyer must devote his efforts solely to the benefit of his client. On the other hand, one might attribute this state of the law to a silent fraternalism or an unspoken bond between lawyers and judges. That is, judges who were once practicing lawyers are sympathetic to the wishes of lawyers to avoid liability for their rendition of legal services. Regardless of the motivation for adherence to the privity requirement, the vast majority of states still require the existence of privity between a client and a lawyer before liability may be established against the lawyer. Nevertheless, in a minority of states, the courts have looked at the lack of privity between an injured party and a lawyer and have accepted one of several theories in order to allow an injured party to establish liability against the lawyer. One theory allows persons who are intended third-party beneficiaries to establish liability against the lawyer. This theory has been used most frequently in the context of probate proceedings. For example, a testator gives instructions to his lawyer to set up a trust for A, B, and C. Yet the lawyer fails to establish the trust. As a result, A, B, and C sustain adverse tax treatment of their inheritance and are required to pay more taxes than if the trust had been established. In most instances, A, B, and C would not have a privity relationship with the lawyer. Nevertheless, the trust was specifically designed for their benefit. Unless the privity requirement is relaxed, A, B, and C will be unable to establish liability against the lawyer for malpractice. To provide A, B, and C with a remedy, some courts have said that because A, B, and C were the intended beneficiaries of the trust, they should be able to establish liability against the lawyer. A second theory that has been used to relax the privity requirement against lawyers is to allow persons whose relationship to the transaction or event is so close that it places them within in a zone in which it is highly likely that they would be harmed. Defining the parameters of who is within such a zone has been difficult. The courts have struggled with this issue but have said that the analysis requires a detailed factual review and will be done on a case-by-case basis. These courts have generally looked to three criteria for imposing liability: (1) the awareness by the lawyer that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the lawyer linking him to the relying party and evincing his understanding of that reliance. Even though these criteria may be satisfied, a company will still only have the ability to establish liability against its consultant's lawyer in a handful of jurisdictions. Therefore, companies that deal with consultants and their consultants' counsel should not rely on the possibility of the courts to relax the privity requirement. Instead, companies should take certain steps to ensure they will have recourse if bad advice is given to them by their consultants' attorneys. One solution is for the company to establish a contractual relationship directly with the consultant's law firm. In addition, all agreements between a company and its consultants should be reviewed by the company and its counsel to determine if the agreement with the consultant allows the consultant to hire counsel. Second, the company may be well served by including in their agreement with their consultants a provision that establishes a link between the legal services rendered to the consultant and the company. Third, the company could provide in its contract with the consultant that a copy of all correspondence between the consultant and the lawyer hired by the consultant must be sent to the company. Finally, the company could require that any legal opinion letters from counsel to the consultant be addressed to both the consultant and to the company. Generally, when a company hires a consultant, there is an expectation that the company can rely on the consultant's lawyers. Nevertheless, this expectation can be frustrated unless the company takes steps to establish a link between itself and the counsel. A careful review of all contracts with the consultant should be undertaken to determine if consultants have the authority to hire counsel. Where appropriate, steps should be taken to protect the company's expectation that it can rely on its consultant's counsel. Notes: (1) In re Crazy Eddies Sec. Litig., 812 F. ,upp 338 (ED NY 1993), Ahmed v. Trupin 809 F.Supp 1100 (SD NY, 1992). Also arguments have and will continue to be made that accounts can be liable under the Restatement of Torts (Second) 552. © Copyright 199...______________________   ADDRESS YOUR FAX TO THE RISK MANAGEMENT LETTER at (714) 955-1929. Special trial subscription not available to existing or previous RML subscribers.

Sample Electronic Communication Policy
Every firm with a computer network, Internet access, or e-mail should have a policy for using them. Without one, you risk wasted time and inappropriate use by employees that can be unprofessional at best. Steve Anderson addresses the need with this document, a sample electronic usage policy template you can use as is, or customize to your firm. ABC Insurance Agency Policy Purpose To maximize the benefits of electronic communications to ABC Insurance Agency (The Company) and its employees, while protecting the Company and its employees from liability and/or performance challenges due to improper or unauthorized use of the systems made available to facilitate the business of the Company. Company Property As a productivity enhancement tool, the Company (including all subsidiaries) provides and encourages the business use of electronic communications (notably the Internet, voice mail, electronic mail, and fax). Electronic communications systems owned by the Company and all messages generated on or handled by these electronic communications systems, including back-up copies, are considered the property of the Company. Any attempt to violate, circumvent, and/or ignore these policies could result in corrective action, up to and including termination. Authorized Usage The Company’s electronic communications systems must be used solely to facilitate the business of the Company. Users are forbidden from using the Company’s electronic communications systems for private business activities, personal, or amusement/entertainment purposes. Employees are reminded that the use of corporate resources, including electronic communications, should never create either the appearance or the reality of inappropriate use. Inappropriate use might result in loss of access privileges and disciplinary action, up to and including termination. Proper Usage Employees are strictly prohibited from using Company computers, e-mail systems, and Internet access accounts for personal reasons or for any improper purpose. Some specific examples of prohibited uses include, but are not limited to: Transmitting, retrieving, downloading, or storing messages or images that are offensive, derogatory, off-color, sexual in content, or otherwise inappropriate in a business environment. Making threatening or harassing statements to another employee, or to a vendor, customer, or other outside party. Transmitting, retrieving, downloading, or storing messages or images relating to race, religion, color, sex, national origin, citizenship status, age, handicap, disability, sexual orientation, or any other status protected under federal, state, or local laws. Communicating confidential Company information to individuals inside or outside the Company or to other organizations, without specific authorization from management. Sending or receiving confidential or copyrighted materials without prior authorization. Soliciting personal business opportunities or personal advertising. Gambling, monitoring sports scores, or playing electronic games. User Identification Where electronic communications systems provide the ability to identify the activities of different users, these facilities must be implemented. For example, electronic mail systems must employ personal user-IDs and associated passwords to isolate the communications of different users. Fax machines that do not have separate mailboxes for different recipients need not support user separation. User Accountability Regardless of the circumstances, individual passwords must never be shared or revealed to anyone besides the authorized user. To do so exposes the authorized user to responsibility for actions the other party takes with the password. Violation could result in discipline of both the authorized user and the person receiving the password, up to and including termination. If users need to share computer resident data, they should use message-forwarding facilities, public directories on local area network servers, and other authorized information-sharing mechanisms. To prevent unauthorized parties from obtaining access to electronic communications, users must choose passwords that are difficult to guess (for example, not a dictionary word, a personal detail, nor a reflection of work activities). No Expectation of Privacy Employees should expect that the Company might access all information created, transmitted, downloaded, received, or stored in Company computers at any time, without prior notice. Employees should not assume that they have an expectation of privacy or confidentiality in such messages or information (whether or not this content is password-protected), or that deleted messages are necessarily removed from the system. No Default Protection Employees are reminded that Company electronic communications systems are not encrypted by default. If sensitive information must be sent by electronic communications systems, encryption or similar technologies to protect the data must be employed. Users should have no expectations of privacy using Company equipment. Unlike written communications, e-mail does not usually have an 'envelope.' Unless the e-mail message is encrypted, you’re sending a postcard, not a letter. Regular Message Monitoring Contents of electronic communications might be monitored and the usage of electronic communications systems will be monitored to support operational, maintenance, auditing, security, and investigative activities. The Company reserves the right to disclose any electronic messages to law enforcement officials without prior notice to any employees who might have sent or received such messages. Users should structure their electronic communications recognizing the fact that the Company will, from time to time, examine the content of electronic communications. Because all messages are company records the Company reserves the right to access and disclose any message sent over its electronic messaging systems. The Information Technology Department and Department Supervisors have the right to review the electronic communications of the employees they supervise to determine whether there have been any breaches of security, violations of company policy, or unauthorized actions on the part of the employee. Statistical Data Consistent with generally accepted business practice, the Company collects statistical data about electronic communications. For example, call detail reporting information collected by telephone switching systems indicates the numbers dialed, the duration of calls, the time of day when calls are placed, etc. Using such information, Information Technology personnel monitor the use of electronic communications to ensure the ongoing availability and reliability of these systems. If during the collection and review of such information they find questionable, inappropriate or illegal use of electronic communications, they must report their findings to management. Contents of Messages Workers must not use profanity, obscenities, or derogatory remarks in electronic messages discussing employees, customers, competitors, or others. Such remarks — even when made in jest — might create such legal problems as trade libel, defamation of character, or harassment/discrimination claims. Special caution is warranted because backup and archival copies of electronic mail might actually be more permanent and readily accessed than traditional paper communications. Therefore, transmission of obscene or harassing messages to any individual is strictly prohibited. Message Forwarding Recognizing that some information is intended for specific individuals and might not be appropriate for general distribution, electronic communications users should exercise caution when forwarding messages. Sensitive Company information must not be forwarded to any party outside the Company without the prior approval of management. Blanket forwarding of messages to parties outside the Company is prohibited unless such permission has been obtained. Handling Information About Security Users must promptly report all information security alerts, warnings, suspected vulnerabilities, and the like to an appropriate manager. Users are prohibited from utilizing Company systems to forward such information to other users, whether these users are internal or external to the Company. Public Representations No media advertisement, Internet home page, electronic bulletin board posting, e-mail message, voice mail message, or any other public representation about the Company can be issued without prior approval by management. Archival Storage All official Company e-mail messages, including those containing a formal management approval, authorization, delegation, or handing over of responsibility, or similar transaction, must be archived/copied to individual user archive files within the Company e-mail facility. Purging Electronic Messages Messages no longer needed for business purposes must be periodically purged by users from their electronic message storage areas (including outboxes, in-boxes, and file folders). It’s recommended that individual users delete electronic messages stored on the Company’s e-mail systems after 90 days. After seven days e-mail which has been sent to 'Trash' will automatically be purged in order to increase scarce storage space and simplify records management and related activities. Voice mail messages are saved for 30 days, then purged. Undeliverable messages are automatically deleted. Harassing or Offensive Materials The Company computer and communications systems are not intended and must not be used to exercise employees’ right to free speech. Sexually explicit words and images, ethnic slurs, racial epithets, religious or political statements, or anything else that might be construed as harassment or disparagement of others based on their race, national origin, sex, sexual orientation, age, religious beliefs, or political beliefs may not be displayed or transmitted. Unwanted telephone calls, e-mail, and internal mail messages are strictly prohibited, with violators subject to disciplinary action including termination. Users are encouraged to respond directly to the originator of such messages. If the originator does not promptly stop sending offensive messages, users must report the communications to their manager and the Human Resources department. The Company retains the right to remove from its information systems any material it views as offensive or potentially illegal. Establishing Electronic Business Systems Although the Company seeks to aggressively implement Electronic Data Interchange (EDI) and other electronic business systems with third parties, all contracts must be executed by paper documents prior to purchasing or selling via electronic systems. EDI, e-mail, and similar binding business messages must be released against blanket orders, such as a blanket purchase order. All electronic commerce systems must be approved prior to usage. Paper Confirmation for Contracts All contracts entered into through electronic offer and acceptance messages (fax, EDI, electronic mail, etc.) must be formalized and confirmed by paper documents within two weeks of acceptance. Employees must not employ scanned versions of hand-rendered signatures to give the impression that the sender signed an electronic mail message or other electronic communications....

Are You Getting The Most From Premium Financing?
'It's all good,' says Richard O'Neil, President of Key Insurance Corporation in Tampa, Florida. He has no complaints about his experience in premium financing, and it's easy to see why: His agency, with six branch offices and a total premium volume of about $10 million, has more than half of its 25,000 Personal Lines accounts financing their premiums. 'Much of it is nonstandard auto and mobile homes,' he explains. 'Often the carrier wants its premium upfront. It's hundreds of dollars, and the customer doesn't have it.' Key Insurance obliges the carrier and the insureds by financing the premium through Bay Budget Corporation, a wholly owned agency subsidiary that currently charges about 16 percent simple interest, plus up to $20 as a set-up fee, with as little as 10 percent down. The interest and fees don't add to much to the monthly amount the customers will pay, O'Neil says, and besides: 'The selling point is service. The customer usually just says, 'Where do I sign?' O'Neil has been operating Bay Budget for 11 years, drawing on bank debt and internal funds for capital. Today the subsidiary earns a return that O'Neil will only say is in six figures. And while he knows not everyone wants to do this much premium financing, his rationale is convincing: 'You can easily make $50,000 or $60,000 with this.' Key Insurance is unusual among agencies for its volume and the type of close-to-home premium financing it employs. Most agencies that engage in the business arrange financing only for Commercial policies, and most use an outside company to assume the risk and administer the program. But even then, premium financing isn't widely used. While there are no independent statistics, industry leaders estimate that just $12 billion, or less than 10 percent, of Commercial P/C premiums are financed. It's not that agents don't know about premium financing: a PIA poll taken a few years ago found that nine out of 10 agents set up financing for some Commercial clients. Now, though, more agents are apparently following in Dick O'Neil's footsteps and going into business for themselves. As they seek ways to manage their cash flow more effectively, these agencies are trying to imitate on a small scale what the giants of the industry do as multi-billion-dollar businesses: borrow against receivables and lend against the unearned portion of the premium. It's high finance that promises new profits, but there are risks beyond the obvious of lending to a customer. That's why agents must ask a few tough questions before they take the plunge: Is there a large enough untapped demand that I can fill? Do I have the skills to run a finance company that generally must be licensed, incorporated, located, and staffed separately from the agency? Am I prepared to assume the requisite financial risk? Most agencies play it on the safe side. Julie Sizemore, Commercial Lines supervisor at the Murray M. White agency in High Point, NC, says her company has been arranging premium financing for Commercial accounts for more than 10 years. But they don't market the service aggressively: 'It's mainly a service to the customer,' she says, offered when the carrier or broker doesn't provide a payment plan. The agency, which uses Imperial Premium Finance for all its financing, normally doesn't guarantee the insured will pay the loan. For the most part, she says, 'There is really no risk for us at all.' Finance Everything That's music to the ears of Imperial, the fourth-largest company in the industry. The California-based company handles premium financing for many PIA members' E&O coverage. Like O'Neil. Imperial's President and CEO Robert Cycon urges you to be more aggressive in selling premium financing. 'We tell the agent to prepare the financing agreement and present it along with every policy quote.' Rex Hughes, vice president and partner with the Messer-Bowers Company, a $13-million agency in Enid, OK, is that aggressive. He'd rather strike a gusher than watch a slow dribble of commissions checks come in as installments are paid to the carrier. 'We try to finance everything and get our money upfront,' Hughes says. Messer-Bowers draws on several premium finance companies to arrange deals for multimillion-dollar premiums, but the agency also does its own financing by borrowing from a local bank. 'We shop for the best rate just like we shop for the best price for coverage,' he adds. When the agency obtains the financing from the bank, though, it must agree to full recourse if the insured fails to pay. Even so, there haven't been many problems. Says Hughes, 'We rarely have to make up any difference.' Five years ago, the Insurance Systems agency of Brecksville, OH (now Commerce Insurance Systems) entered the premium business when it opened its own company, Priority Premium Finance. Today, $1 million of the agency's $7 million in Commercial premiums is financed either with premium finance companies or through the subsidiary's own line of credit at an Illinois bank. 'It provides profit to the agency and helps the balance sheet,' says Greg Hostelly, Priority's vice president of finance. 'Financing converts receivables into cash or a more collectible note.' O'Neil is willing to admit that premium financing isn't for everyone. 'This isn't a business for people who aren't good managers. You have to follow the rules, monitor the accounts and collect the receivables.' But if an agency is ready to enter the ring, there are many companies eager to lace up their gloves. O'Neil's Bay Budget Corp. was equipped with a premium finance software system developed by Streetwise Systems of Boca Raton, Florida. EASYSTREET generates contracts and bills, tracks payments, and issues overdue and cancellation notices. Written for PCs and Novell networks, the program is offered in three increasingly sophisticated versions for agents getting started, independent finance companies and multi-state operations. Prices start at $5,000, plus a monthly maintenance charge of about $150, and the company says more than 300 copies have been installed. 'We provide training, maintenance, and ongoing communications about market conditions and changes in laws and regulations,' says Joseph Hartly, a Streetwise vice president. 'We try to eliminate the pitfalls and ways to lose money.' In the last year, for example, Streetwise opened a management company to operate finance companies for agencies that don't have the confidence, staff, or inclination to operate it themselves. Similarly, Stewart Rosenberg, an agent and president of Premium Finance Associates of Baltimore, offers to set up agents in premium finance with a software package that he is continually customizing to meet emerging needs. Rosenberg claims 61 current clients, including agencies, managing general agents, insurers and several independent investors who provide capital for premium capital for premium finance. Rosenberg has also lined up a major reinsurance company to act as a guarantor so that agents can borrow at close to the prime rate, like major corporations, and increase their leverage. He finds that agencies best suited for premium financing are those with strong niche markets where the policies are similar and a high percentage require financing. The volume threshold for entering into the business, he believes, should be about $100,000 for receivables, or $400,000 of premium to be financed. 'Our independent premium finance company has $22 million in receivables,' he says, 'and the late fees cover the payroll of almost $400,000.' At Commerce Insurance Systems in Ohio, the premium finance subsidiary is structured to minimize its administrative burden on the agency. St. Louis-based Cost Financial Services does the bookkeeping, invoicing and collecting, and charges a fee based on the number of transactions and dollar volume. 'They came to us, having already arranged the financing, and said, 'All we need is you,' he recalls. Yet, long-time industry players view agencies' premium finance subsidiaries skeptically. Paul Zarookian, senior vice president of A1 Credit, points out his company can borrow by selling commercial paper at the lowest market cost. The company-a New York subsidiary of AIG that is among the largest in the business-has recently offered rates from 4 to 13 percent, usually with 20 percent down and nine monthly payments. Deals for less than $75,000 are handled over the phone. NO AGENCY RISK A1 Credit avoids asking the agent to assume financial risk. In fact, the company's standard contract is non-recourse to the agency. 'If there's a shortfall in payments, I don't want to come after the agent to collect,' says Zarookian, 'because that's who we're trying to sell our services to.' Even when using a premium finance company, though, there is the risk having to return unearned commissions if there's a cancellation. And Zarookian identifies another risk: 'Short-term interest rates are low now, but we anticipate they're going to rise,' he projects. 'There is a rate risk in doing these loans, and you need the size and capital base to work with it. Most agencies don't have enough capital to do it, and they have to go to a bank, where their cost of borrowing is far higher.' Which brings up his third objection: 'What else could you do with that capital?' he asks. 'Looking at the return for the risk, most agents would probably do better hiring another producer than going into a business they may not completely understand.' At CIGNA's INAC premium finance subsidiary in Philadelphia, president Richard Skilton agrees. 'Agents should do what they do best, which is sell,' he says. 'We believe it's best for them to arrange premium financing and then step out of the picture.' With about $270 million of premium currently financed, INAC tries to win agents' business with competitive rates and responsive service. 'We offer quick turnarounds, electronic funds transfers, and direct access for account status information,' he says. The company is also putting software in agencies so agents can obtain quotes by computer. Agencies can also call the company for a quote. Agent who are profiting from their premium finance ventures also recognize other market risks. 'The greatest fear is of the failure of a carrier for whom you financed a premium,' says Dick O'Neil. When that happens, he explains, 'The carrier has your money and the insured, on getting the notice of insolvency, stops paying off the loan.' Still, some of those losses may eventually be made up by the state guaranty fund, says an optimistic O'Neil. 'Even with all the troubles we've had in Florida [in hurricane-related insolvencies], we've lost less than $1,000,' he says, 'and I expect to get half of that back.' But to minimize such exposures, O'Neil won't finance premiums for non-admitted or for excess and surplus lines carriers. He also steers clear of audited premium policies, since the insured may be handed a bill for more premium to pay for past coverage. If that happens, the bill could land in O'Neil's lap. Strict procedures and attention to detail can greatly minimize the E&O risk from arising from an incorrect billing or cancellation, says Imperial's Cycon. 'If you make a mistake like that, it can cause a lot of grief,' he warns. Cycon also believes it's best not to spread your business among several finance companies. 'You might not want to put all you eggs in one basket, but if you bring more volume to one company, you can get better terms.' Whatever level of risk agents accept in premium financing, there remains the question of whether it's a promising area to pursue. INAC's Skilton expects it to grow only with the market as a whole. Others, like Imperial's Cycon, believe several factors point to more financing. 'Insurance rates are soft now, and with low interest rates, the carriers aren't making as much on their investments, so we're beginning to see premiums go up,' he says. Furthermore, he predicts, carriers are likely to eliminate their own low-cost or no-cost premium financing programs in a hardening market. Forecasts aside, though, the possibilities bear serious consideration. Agents with a clear eye for risk, a growing need to offer their customers financing, and a desire to fill that need (either through the established premium finance companies or by establishing their own) can accomplish a host of goals through premium financing. Like Messer-Bowers' Rex Hughes, they can build new businesses, earn more on their existing book, and get their money sooner....

16 Ways To Keep A Business Alive As Commerce Goes Online
'So dawn goes down today, nothing gold can stay.' Robert Frost 'There are no more power elites.' Manuel Castels in The Information Age The painfully obvious implication of these quotes can be seen in the business world: IBM pulls its PCs out of retail venues because it no longer considers them profitable. The Wall Street Journal reported that in 1998, there were $301 billion in sales via the Internet, while the manufacturing sector did $350 billion in overall business. It took the Internet roughly 36 months to reach this figure; manufacturing needed 150 years. However, Bill Gates once warned that Microsoft's supremacy could be temporary. Nothing stays in place because there are no more power elites, pillars, safe harbors, or certainties. This leaves the question of how businesses can stay on track and out of trouble in this new and totally different environment. Here are some guidelines: 1. E-commerce isn't for every business. That might sound somewhat shocking these days, but look around. Levi-Strauss, for example, made a valiant effort to sell customized jeans over the Internet. It just didn't work. Visiting a Levi's store might be the best way to get the right fit after all, at least for now. Dry cleaners often tell customers that they can check the status of their orders via the cleaner's website. This is a good example of using technology to take a step backwards. It's high-tech, but it isn't useful. Give customers same-day service, and they don't need to check on when their clothes will be ready. 'We want to get into the E-economy,' says an insurance agency vice president. 'Why?' asks the marketing executive. 'Everybody in our office thinks it's the way to go,' the vice president responds. More nonsense. Unless there's a valid, compelling reason to commit extensive resources to E-commerce, don't jump. 2. The Web isn't the only game in town. Flip through the ads in The Wall Street Journal. A majority of them are there for one purpose: To promote a website address. This should send a message to anyone wanting to increase website traffic. Don't count on 'bookmark this page' instructions or overworked search engines to drive traffic to your site more than a few times. And don't rely on third parties to direct visitors your way. You need carefully crafted and properly funded promotions using a variety of marketing tactics and plans to keep customers coming to your website. 3. Traditional marketing channels are still valid. The aim is to get attention. The Internet makes this job more complicated, not simpler. You need to use the full range of marketing techniques. Direct mail, for example, is far from dead. In fact, it appears to be becoming even more effective as the junk moves to E-mail. What finally arrives at someone's desk or mailbox has a better chance of getting attention. The rush to fax and broadcast E-mail comes under the 'quick hit' heading. 'Don't do it right, just do it fast and cheap.' This idea is more menace than marketing. Whether it's advertising, direct mail, print newsletters, marketing brochures, or public relations, the goal is to understand customer needs and focus on them as precisely and effectively as possible. Traditional marketing channels can still do all of this quite effectively. Anyone ready to abandon these channels should realize that these are the vehicles being used to bring traffic to websites. 4. Marketing is an exercise in expert juggling. The Web hasn't changed this, although it offers brilliant new opportunities to accomplish one primary goal: Meeting the specific needs of individual customers in ways they want to be served. To accomplish this goal, even small companies need to maintain multi-faceted, integrated marketing programs consisting of self-promotion, public relations, and advertising. You need to approach customers in a number of ways simultaneously to capture their interest. This requires careful coordination and management to succeed. Placing all of a company's marketing eggs in any one basket, such as the Internet, can be dangerous. A website requires continual infusions of dollars and time, which can siphon away resources from other parts of a marketing program that includes the Internet but also recognizes the need for an integrated marketing effort. 5. Plan or perish. Strange as it might sound, although there's always value in bringing order out of chaos, a well-organized and properly implemented marketing plan isn't the complete answer. Even with the best research, things sometimes don't work out as planned. Former Coca-Cola marketing guru Sergio Zyman says that it's equally important to have a 'destination plan.' The marketing task isn't so much about answers as it is about asking the crucial questions. In many cases, the marketing plan sounds the alarm when reaching the destination appears to be in jeopardy -- allowing you to change your course. 6. Use the Web as a bellwether. Successful E-commerce seems to reflect directly what customers don't like and what they want changed. For example, selection is important to many customers. If they're shopping for luggage, they want to know what's available, and going from store to store takes too much time. Going to E-bags.com, however, is quick and easy. Traditional booksellers were shocked when websites selling books appeared. Of all products, this is the one that customers need to touch and browse, they said. Evidently all customers aren't like that, particularly when they heard, 'I'm so sorry, we don't have that book, but we'll order it for you. It will take only a week or two.' Transforming unpleasant and painful experiences is where the Internet shines. 7. All that counts is the customer. Aren't those words obvious? Not always. Consider your personal experiences with banks, bakeries, doctors' offices, restaurants, electronics stores, supermarkets -- anywhere! Do they always treat you as if you come first? Then there's that common voice-mail message, 'Leave your name and number. I'll get back to you when I can.' How about the number of unanswered voice-mail and E-mail messages? Does this sound as if the customer comes first? We tend to put our agenda first, not the customer's; we want to be in front of prospects when we're ready. Look at most sales letters and literature. Most are written from the point of view of the company doing the selling. Where's the customer? According to Forrester Research, online (or 'click') merchants generate greater customer loyalty than their bricks-and-mortar counterparts. Even if you've been buying home appliances from the same dealer for 30 years or clothing from a particular store for 15 years, those businesses probably have made no effort to understand your behavior or buying habits. But the first time you visit Landsend.com, you're viewed as an individual they want to understand. 8. Get outside of yourself. It's easy to be self-centered in business. It's also dangerous. Companies, like people, tend to think mostly about themselves -- who they are and what they want. 'Most business theories are too inward directed,' wrote Regis McKenna in Real Time. 'More attention should be paid to the external forces of change.' When auto manufacturers focused on what customers wanted, cup holders appeared in cars. Are splashy-looking computers friendlier? Ask Apple. Marketing breakthroughs are the result of looking outward. It's surprising how few companies are willing to invest in research but are willing to bet the ranch on gut instincts. Outside of the world of business, such behavior would be described as foolhardy. A sales-seminar speaker asks participants how many read USA TODAY every day. It turns out only about three in 100 do. Yet this popular publication describes new trends daily. If you're one of the 97 not reading it, ask yourself why. 9. Get rid of company mission statements and core values. If mission and vision statements, core values, and company cultures were nothing more than innocent diversions occupying the time of underworked (and overpaid) executives, they might be justifiable. Actually, they're quite destructive. They create limitations that inhibit creativity, thwart agility, and defy change. Vision statements erect barriers and create set patterns of thought and behavior. This used to be IBM's problem, and it has raised havoc at General Motors for decades. A middle manager might be concerned about whether a particular job candidate will fit into the company culture. This might be the most important reason to hire that person! 10. If you see it, don't believe it. Doppelgangers pervade business. There's a lot of talk about innovation, but talk is all it is. Business strategies are clones of the competition. Apple brings out its unique and colorful iMac, and then along comes Compaq with its knockoff. The colorful iBook laptops were quickly disdained by the competition-but almost immediately IBM offered color inserts for some of its laptops. Do customers want colorful computers? Perhaps. Just because Apple thinks so doesn't make it right for another company. Just because one business appears to have an E-commerce edge doesn't mean it's right for another company in the same industry. Seeing isn't believing. 11. Not all ideas have equal value. The Internet has truly leveled the playing field for ideas, so any thought, no matter how ignorant or ill-informed it might be, has a place on the Web. In business, critical thinking is now necessary more than ever. It's painfully common for an executive to say, 'I never watch those shows' and veto a media buy on the strength of this formidable evidence. Or the president, passionate about his or her story, proclaims to the public relations team, 'This is front page stuff!' without having an editor's background to recognize genuine newsworthiness. An idea isn't great simply because someone had it. 12. Just because it works doesn't mean it's right. This is a strategic issue, not a moral one. Business was very good for a New York-based manufacturer as orders rolled in. Recognizing that the company was starting to plateau, management called in a marketing consultant. A series of customer interviews revealed very high customer-satisfaction ratings. This was a valued supplier, but it was shipping one kind of product: What customers needed fast. It worked, but it wasn't the right focus for the manufacturer. Other vendors got the 'regular' orders. Anyone who could meet the manufacturer's delivery schedules could take its business away. Although the manufacturer's systems worked efficiently, the company was vulnerable. To avoid a possible catastrophe, the company planned and implemented a shift in focus by introducing a proprietary product line. 13. On the Internet, the watchword is 'free.' Perhaps the farthest-reaching change brought about by the Internet is the value of 'free.' Netlibrary.com is a free public library. Borrow or buy a book-it's your choice. There are many free books, and for only $29.95 a year, you can access an even larger collection. Encyclopaedia Britannica tried to sell access to its 30 volumes online for $5 a month. It didn't work. Then it offered the access for free, and 10 million people attempted to visit the site the first day. With such a powerful pull, Britannica is attracting advertisers. E-greetings Network, Inc. had the same experience. When it sold greeting cards on its website, it attracted 300,000 users. When it gave the cards away, 7 million visitors arrived. CEO Gordon Tucker said, 'Charging for cards was a small idea. Giving them away is a really big idea.' David Cowan of Bessemer Venture Capital added, 'People expect a lot of things for free. And if you don't give it away, some other start-up will.' So 'free' doesn't mean that the companies have to lose out. Advertisers are now paying visitors to visit their sites. 14. There will be no more hunters. In selling, the image of a 'hunter' (a male) going in for the kill remains intact. The notion of the 'gatherer' (a woman) as a salesperson is disdained. Now this notion is crumbling like the Berlin Wall. The Internet turns the tables -- the successful salesperson will be the gatherer. Selling today requires nurturing prospects, and the gatherer uses a cultivation and harvesting process to make the sale. There's an interesting implication in all this. With such dramatic changes in buyer behavior, it's probable that sales, like other professions, will be rejuvenated by people in whom the traits necessary for cultivating and harvesting are often observed: Women. 15. It's 24/7 for everyone. Although some people erect firewalls between work and their personal life, the direction is toward a blending of the two. A wired world sets no boundaries on place or time. This translates into changing customers' expectations. In an amazing about-face, customers are less willing to travel to make purchases. Online buying is breaking the back of a deeply ingrained 50-year shopping-center mentality. You might want to check out the luggage at 7:35 a.m., browse again at 12:19 p.m., and make the purchase at 10:07 p.m. 16. The customer is in charge. Forrester Research concludes what might seem obvious about online buying behavior: Customers want convenience first and foremost. 'Dell or Be Delled' intoned a Wall Street Journal headline. Focusing on the main reason for computer mogul Michael Dell's success, the writer stated, 'Dell has bypassed traditional distribution channels and gone directly to the customer.' Although the mom-and-pops adhere to their 'We give personal service' mantra, the customer sees it differently: 'I'll shop where it's easy and convenient, and where someone is paying attention to my needs.' Such a statement marks an abrupt and far-reaching shift in buyer behavior. It's ironic that a debate is raging over privacy on the Internet at the same time that customers are eagerly providing online retailers and service companies with an enormous amount of personal data. Customers know that the information is needed if they're to be served in precisely the way they want and expect. The more information available, the better the service. There's a message in all this. There are no more power elites. The changes brought about by the Internet aren't just about doing it better and faster, although this is essential for survival. These 16 strategies might not cover every eventuality or solve every problem, but they can point a business in the right direction. ...

Basic Facts About Registering A Trademark, Part 1
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 1 of 5   What is a Trademark? A trademark is either a word, phrase, symbol, or design, or combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet the terms 'trademark' and 'mark' are used to refer to both trademarks and service marks, whether they're word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information, call the Library of Congress at (202) 707-3000. Establishing Trademark Rights Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. (See below, under 'Types of Applications,' for a discussion of what is meant by the terms 'commerce' and 'use in commerce.') Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide. There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark. The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. This is particularly true when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in a court proceeding. The PTO cannot provide advice concerning rights in a mark; only a private attorney can. Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark or identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled. Types of Applications for Federal Registration An applicant may apply for federal registration in three principle ways: An applicant who has already commenced using a mark in commerce may file based on that (a use application). An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an intent-to-use application). For the purpose of obtaining federal registration, commerce means all commerce that may lawfully be regulated by the U.S. Congress-for example, interstate commerce or commerce between the United States and another country. The use in commerce must be a bona fide use in the ordinary course of trade, and not made merely to reserve a right in a mark. Use of a mark in promotion or advertising before the product or service is actually provided under the mark on a normal commercial scale does not qualify as use in commerce. Use of a mark in purely local commerce within a state also fails to qualify as use in commerce. If an applicant files based on a bona fide intention to use in commerce, the applicant will have to use the mark in commerce and submit an allegation of use to the PTO before the PTO will register the mark (see Part 3). Additionally, under certain international agreements, an applicant from outside the United States may file in the United States based on an application or registration in another country. For information regarding applications based on international agreements, please call the information number provided in Part 2. A U.S. registration provides protection only in the United States and its territories. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws. The PTO cannot provide information or advice concerning protection in other countries. Interested parties may inquire directly in the relevant country, in its U.S. offices, or through an attorney. Who May File an Application? The application must be filed in the name of the owner of the mark-usually an individual, corporation, or partnership. The owner of a mark controls the nature and quality of the goods or services identified by the mark. See below in the line-by-line instructions for information about who must sign the application and other papers. The owner may submit and prosecute its own application for registration, or may be represented by an attorney. The PTO cannot help select an attorney. Foreign Applicants Applicants not living in the United States must designate in writing the name and address of a domestic representative-a person residing in the United States 'upon whom notices of process may be served for proceedings affecting the mark.' The applicant may do so by submitting a statement that the named person at the address indicated is appointed as the applicant's domestic representative under 1 (e) of the Trademark Act. The applicant must sign this statement. This person will receive all communications from the PTO unless the applicant is represented by an attorney in the United States. Searches for Conflicting Marks An applicant is not required to conduct a search for conflicting marks prior to applying with the PTO. However, some people find it useful. In evaluating an application, an examining attorney conducts a search and notifies the applicant if a conflicting mark is found. The application fee, which covers processing and search costs, will not be refunded even if a conflict is found and the mark can't be registered. To determine whether the two marks conflict, the PTO determines whether there would be likelihood of confusion-that is, whether relevant consumers would be likely to associate the goods or services of one party with those of the other party as a result of the use of the marks at issue by both parties. The principal factors to be considered in reaching this decision are the similarity of the marks and the commercial relationship between the goods and services identified by the marks. To find a conflict, the marks need not be identical, and the goods and services do not have to be the same. The PTO does not conduct searches for the public to determine if a conflicting mark is registered, or is the subject of a pending application, except as just noted, when acting on an application. However, you can get this same type of information in a variety of ways: Perform a search in the PTO public search library, located on the second floor of the South Tower Building, 2900 Crystal Dr., Arlington, VA 22202. Visit a patent and trademark depository library (at locations listed in Part 4). Go to either a private trademark search company or an attorney who deals with trademark law. The libraries in the first two entries have CD-ROMs containing the trademark database of registered and pending marks. The PTO cannot provide advice about possible conflicts between marks. Laws & Rules Governing Federal Registration The federal registration of trademarks is governed by the Trademark Act of 1946, as amended, 15 U.S. C. 1051 et seq.; the Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2d. Ed. 1993). Other Types of Applications In addition to trademarks and service marks, the Trademark Act provides for federal registration of other types of marks, such as certification marks, collective trademarks and service marks, and collective membership marks. These are relatively rare. For forms and information regarding registration of these marks, please call the appropriate trademark information number, indicated below. Where to Send Application and Correspondence The application and all other correspondence should be addressed to The Assistant Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3513 The initial application should be directed to 'Box NEW APP/FEE.' An AMENDMENT TO ALLEGE USE should be directed to 'Attn. AAU.' A STATEMENT OF USE or REQUEST FOR AN EXTENSION OF TIME TO FILE A STATEMENT OF USE should be directed to 'Box ITU/ Fee.' The applicant should indicate his or her company's telephone number on the application form. Once a serial number is assigned to the application, the applicant should refer to the serial number in all written and telephone communications concerning the application. It's advisable to submit a stamped, self-addressed postcard with the application specifically listing each item in the mailing-that is, the written application, the drawing, the fee, and the specimens (if appropriate). The PTO will stamp the filing date and serial number of the application on the postcard to acknowledge receipt. This will help the applicant if any item is later lost or if the applicant wishes to inquire about the application. The PTO will send a separate official notification of the filing date and serial number for every application about two months after receipt....

Telemarketing: One Step Toward Sales Efficiency
As the agency system strides to be competitive, some agencies find telemarketing pays off. The efficiency of the independent agency system is more under fire today than ever before, and not just from within the industry itself, as has been the case before. The ongoing jockeying for marketshare, position among independent agents, direct writing companies and captive agent companies has dominated the trade press for more than two decades. But the issue has always been an internal one. The questions raised were: How could independent companies assist their agency forces to become competitive with the less costly distribution systems of the direct writers and the captive agent carriers? What could agents offer the companies they sign with in terms of attractive and stable types of business? Today, the calls for a more efficient insurance industry distribution system are coming from outside sources. Consumer activists such as Ralph Nader and Robert Hunter, president of the National Insurance Consumer Organization (NICO), are accusing the industry of being horrendously inefficient at the expense of the public. They have said that if the industry does not cut distribution costs, then it will have to deal with the wrath of the public. Whether or not one agrees with their premise, the validity of their argument regarding the public demands on the industry came home with some force with the passage of Proposition 103 in California. In that vote the public said, in effect, that insurance costs have to be curtailed and that is up to the industry to find ways to trim the fat or that fat will be cut away arbitrarily by public mandate. But it's not only the consumer activists. The Congress and the judicial system have gotten into the act as well. The Supreme Court of California, although it softened the blow to the industry somewhat in saying that insurers are entitled to a 'fair return' on sales, upheld the right of the populace to demand efficiency on the part of the industry. As for legislators, Congress has looked into the question of industry operations before. But never has it seemed more plausible that legislators might rescind the industry's McCarran-Ferguson antitrust exemption, or alter it to such a degree that the game would be changed forever. The ones most likely to feel the brunt of all these changes are the independent agents. The future of the agency system depends more than ever on improving the efficiency of its operations. And the answer, like it or not, lies in computerization. Independent Agents Confront Technology But even that answer contains many problems. The direct writer can make use of sophisticated technology to deliver the insurance product cheaper and faster. The captive agent company can do the same and boast the services of a knowledgeable consultant to get the work done. But the independent has always depended on the representation of multiple companies as the big draw to attract new business. The sophisticated technology is there, but the independent agent must not only learn how to use that technology for everyday operations, but also face the prospect of interfacing that technology with all the companies represented in a cost-efficient manner-cost efficient for the agency and cost efficient for the industry overall. In the weeks to come, we will look at the independent agent's plight in this brave new world. We will examine the many problems associated with 'interface' and examine the technological equipment available to the agent. We will look also at how independent agents are at present using technology to provide better services to consumers. But for this column, we are considering how technology, available from both within and without the industry, can assist the agent in attracting new business. It goes without saying that the days of agents calling individuals prospects on a one-to-one basis are gone. With direct writers and other forms of mass marketers, the agent who relies upon this technique is using a slingshot to challenge a Goliath who has gone past the point of being tamed, let alone slain. The agent of the future must be able to reach out beyond the phone call, the house visit or the cozy contact. The agent of the future will have to depend on computerization and telemarketing to attract both the prospect and company loyalty. The problem is whether this can be done on a cost-efficient basis to satisfy all three needs-the needs of the company that wants an agency that is efficient and productive, the needs of the prospects who is just a phone call away from a direct writer, and the needs of the agency itself which must, to survive, turn a profit despite the increased costs of new technology. The good news is that the technology is out there for agents to generate new business. The bad news is that there is no pat formula. What works for one agency might not work for another. And so the agent must read, listen, and learn about the various approaches that other agencies are experimenting with today. The use of computer technology as a means of 'lead generation' for the independent insurance agent may just mean the survival of the independent agency system. Consider the following message being delivered by Mitchell Glass of the National Association of Professional Insurance Agents to that association's members: "Today, there are essentially three distribution channels for the insurance product, and you're one of them. The other two are direct writers and direct marketing companies. It's been recently estimated that almost 40% of the insurance consumers in your home town are not covered through the agency system. In a recent response analysis survey of households earning $20,000 a year or more (it is estimated that there are over 50 million such households), it was found that 20% have no agent for auto insurance, 28% have no agent for homeowners and 42% have no agent for life insurance." "Using the estimated 50 million households, 10 million households are buying auto insurance without an insurance agent, 14 million households are buying homeowners insurance without an insurance agent and 21 million households are buying life insurance with an insurance agent." The statistics are staggering, and Glass offers the reason: "Your competition asked them to buy insurance and you didn't." Glass is saying that the independent agent can only survive and prosper by joining the direct marketers - by changing the traditional approach of agent visiting potential client to one in which the buyer approaches the agent. "The agent has to go out to a large audiences, to play the game of large numbers," says Glass. One way for the agent to tackle this new approach is through telemarketing. Telemarketing, if used properly, can uncover large numbers of promising leads that an agency can quickly turn into profitable sales. David Carlson, of the Carlson Agency in Cedar Rapids, Iowa, speaks of his firm's success with telemarketing. 'In two months, telemarketing generated 200 leads for my agency, and we quoted 55 prospects. Thirteen of those prospects generated $400,000 in premium volume. Agents should hire a full-time telemarketing firm to conduct the campaign instead of attempting it themselves. Telemarketing is a specialized science, and a firm can offer phone experts who are trained to handle prospecting calls professionally. Carlson said that farming out calls to a telemarketing service can also prevent producer 'burnout' and frees producers to follow up the leads and close the sale face-to-face. The Carlson Agency began telemarketing about four years ago with a local firm. "We generated the leads through local members of the Chamber of Commerce and through a local trade union of contractors," said Carlson. "We gave the telemarketing firm the names, and the firm's people made the initial phone calls. Those prospects that demonstrated an interest were contacted by mail by our agency. In some cases, the telemarketing firm made appointments for us." The important aspect of the approach, however, is to reduce the list to the most likely prospects and to save the agent time and increase the potential for a sale, according to Carlson. But Carlson adds that his firm's experience with telemarketing is not necessarily the one for all agencies, although the worth of the concept is one he stands by. For example, Larry Nielson of Automation Management Corp., discusses a different approach to telemarketing. Nielson maintains that some agencies may benefit by approaching a telemarketing firm that already has compiled a large list of potential clients. He mentions a recent effort of Citicorp as an example. In this approach, the agent defines for the telemarketing firm the audience his or her agency would most like to target, geographically or by line. "In this way, the agency can have the telemarketing firm narrow its parameters and find prospects that were unavailable before," says Nielson. The general consensus is that agents should not attempt to telemarket on their own. Direct marketing is a whole new field, and for an agency to endeavor to set up a telemarketing approach in-house would not only be costly but could detract from the agency's time in selling its products. Once the agency has determined, through the use of a telemarketing program - whether they be independent firms or insurance company units - the most salable audience, then that agency can utilize its own in-house computer capabilities to capitalize on direct mail, phone calls, and visits. The worlds of computers and telemarketing may be frightening ones for the traditional agent. But today, with Congressional attention focused on improving efficiency within the insurance industry, and with consumer activists hammering away at the role the expense factor plays in pricing the insurance product, computer technology may not just be an alternative; it may be the only means of survival. ...

Marketing-Driven Fits The Times: Sales-Driven Just Doesn't Do It Any More
Focus on attracting customers not making sales. With effusive CEO testimonials and countless articles and books describing how companies have transformed themselves into tightly focused, totally energized commerce machines, it would seem that change should be easy. But let’s face it: If it were simple, there’d be more of it. Even when the evidence for change is compelling, most companies continue to cling to the known and the familiar. Selling offers a case in point. The sales-driven approach to moving every type of product or service struggles to survive in the face of obstinate hurdles. Even though a marketing-driven strategy makes sense to more and more salespeople, there’s a reluctance to let go of the tried and true, even while there’s obvious evidence pointing to diminishing returns. The difference between sales-driven and marketing-driven selling is anything but subtle. It has nothing to do with semantics and it isn’t “just a matter of emphasis,” as some would have us believe. Marketing-driven selling represents a completely different way of looking at the sales process, a 180-degree shift in both thinking and behavior. “I’ve been in business for 15 years and I didn’t get the difference until last Friday,” says Daryn Ross of Your Image (Kearney, MO), a manufacturer of promotional products. “I don’t understand why it took me so long to realize that we see our products as commodities. It shouldn’t come as a surprise to us that we’ve been selling them with razor-thin margins.” Even with all this, sales-driven remains the only way to go for many. The Life insurance industry has demolished thousands of potentially first-class salespeople over the years with it. After some training, the agents are sent out to accost friends, family, and neighbors. In effect, their task is to con them out of a premium payment. Once the list is exhausted and all the names have been crossed off, they don’t know what to do next and quickly leave the business. Although this might be a blatant example of the sales-driven approach, it captures its essence. Dress things up, change the words, make it sound more sophisticated, but the process remains the same: Go find someone to talk to. Get out there, get in front of prospects, and get the orders. When it comes right down to it, the goal is still to discover a way to get in front of the prospect and work the old magic, using such gimmicks as reading body language and applying a sure-fire close. This picture was reinforced when I received a call from a man who described himself as a professional salesperson who had been in the field for many years. After speaking with him for a half hour, it was clear that he was bright and competent. About 15 years ago, he started his own service company. Ready for a new challenge after selling his business and taking a few months off, he responded to a newspaper ad for a salesperson. When he walked through the door, he was handed a list of company names photocopied from a “manufacturers’ directory,” along with a handful of laser printer-produced business cards. In effect, he was being told to go find the needle in the haystack. As it turns out, the company also “hired” another salesperson the same day, who was given the same amount of job preparation. All this is happening today. The instances aren’t isolated, either. They’re the rule, rather than the exception. To be sure, there are “refinements” to the sales-driven approach. However, most of them are essentially little more than a new, and perhaps brighter, coat of paint. So-called “consultative selling,” for example, attempts to soften the sales-driven approach, offering more of an iron hand in a velvet glove. But the goal is still to get the order. In effect, sales-driven selling isn’t as much a function of skill as it is of sheer luck. Salespeople get excited when they’re in the right place at the right time. Something went wrong. A supplier failed to deliver on time or made one too many mistakes. The regular salesperson didn’t show up. The vendor went out of business or was acquired. Prices went up. All are easily exploitable reasons for a prospect to leave a current supplier, and we should remember, rationales for dropping the new salesperson, as well. Marketing-driven takes a different approach. It’s just as interested in sales, but it’s more interested in creating customers first. And it’s not a con game just to get the order. If this sounds like a “soft-headed” strategy, so be it. We’ve long held that sales-driven companies send the wrong messages to their employees, customers, prospects, and everyone else. Ultimately, they also get the wrong results. The problem with a sales-driven company is that it’s willing to do everything and anything to make the numbers. The ads might talk about “customer driven,” “customer service,” and “client satisfaction,” but behavior tells a different story. Management might preach its gospel of doing good, but actions reveal the true motivations. WorldCom, Inc. offers a case in point. On May 16, 2002, the Wall Street Journal reported that the company’s sales reps had been caught “boosting their sales figures by moving existing accounts from one billing system to another including three star employees” in one office. The reason why this occurred was clear: commissions, commissions, commissions. But that was only the tip of the iceberg. As one former employee said, “It was really a numbers game with WorldCom. And people would do anything they could to make those numbers.” There’s more. “It was the Wild, Wild West, with no sheriff and no rules,” commented another employee. Even when the scam was reported to management, “Nobody wanted to hear about it,” stated an employee. The alarms are going off in my head too often these days because of sales-driven salespeople. Beware when someone says: “We want to help you” “We’re ready to partner with you” “Our goal is to help our customers achieve their goals” “We can save you money” The essential problem with sales-driven selling is that customers see through the scam. More to the point, we can identify it instantly in others but not in ourselves. Customers know when they’re being conned. There are marked differences between sales-driven and marketing-driven selling. Here are a few: Salesperson’s basic approach: Sales-driven: figure out a way to get through the door. Marketing-driven: be invited through the door as a result of being viewed as a valued resource. Salesperson’s strategy: Sales-driven: build a “personal relationship” as quickly as possible. Marketing-driven: be perceived as a competent, helpful advisor. Salesperson’s goal: Sales-driven: sell something, i.e., get an order. Marketing-driven: create a customer, i.e., someone who wants to do business with you. Salesperson’s prospects: Sales-driven: lucky breaks, being in the right place at the right time, cold calls. Marketing-driven: a steady flow of new business by identifying and cultivating prospects carefully and continuously. Salesperson’s behavior: Sales-driven: contacts the customer when there’s something to sell. Marketing-driven: stays close to the customer with ideas and suggestions for achieving customers goals. Salesperson’s agenda: Sales-driven: sell what salesperson wants customer to buy. Marketing-driven: demonstrate that you’re a consultant. Salesperson’s mission: Sales-driven: get an order as quickly as possible. Marketing-driven: build long-term value. For salespeople to be respected as professionals, they must commit themselves to becoming experts who are valued because of what they bring to their customers. The differences between sales-driven and marketing-driven selling are deep. One begins and ends with the order, while the other begins and ends with value to the customer. ...

The ‘I’m Not A Computer Person’ Agency Owner
Anyone in a leadership position walks a fine line everyday, balancing the needs of clients and employees. Achieving this delicate balance requires plenty of flexibility. Jack Burke examines what it takes to succeed as a leader in today’s business climate. When my philosopher friend Mike Manes of Square One Consulting talks about change, he reminds people about those big bad dinosaurs that couldn’t survive climatic change and died. Recently I received this letter from a partner in an insurance agency: 'I have one business partner who thinks that to be successful in the future, you must merge with other agencies, open non-standard offices, and hire new producers. I have to agree with him about all of those options. We merged with an agency more than two years ago and with another agency just over a year ago. We’ve also looked at opening up another office and hiring a new producer. 'However, my biggest concern right now is being prepared internally for the future, and keeping up with the latest technology. My partner is in his 50s and doesn’t want to change the way he does business. He still requires the CSR to pull the file and come into his office to discuss the file or for him to ask a question. He has very little computer knowledge and does not want to go to t-filing in CL or to start using a scanner.' The problem isn’t a new one — in fact it’s legion. And it’s not limited to the insurance business. It’s rampant throughout nearly every industry. I have frequent conversations with experts and consultants about this topic: the inability of a business owner to change. Does this mean the owner must jump into the electronic pool with both feet, attend classes to learn computer technology, and begin subscribing to high-tech publications? Not a bad idea. Hearken back to an earlier day and ask yourself how well a business owner might have survived if they’d refused to integrate that new technological contraption — the telephone — into their business. Or how productive might that business have been if the secretary had to write letters in longhand because the owner didn’t trust typewriters. Unfortunately, many of us baby-boomers cling to our first impressions of early automation technology, when it seemed that computers (think data processors) merely doubled the workload. After all, automation meant doing everything twice: once for the computer and then again using the old methods because we didn’t trust computers. Thankfully, those days are gone and only a true 'dinosaur' doesn’t appreciate the improved productivity of computer usage. THE JOB DESCRIPTION Before we castigate recalcitrant business owners, let’s look at the job description of an owner. I believe it can be summed up fairly easily: Provide the vision upon which the future of a company will be built. Create a nurturing, motivational, and empowering environment for staff Present the philosophical framework to serve the clientele. Generate a fair return on investment for the company. Although this might seem oversimplified, these four categories cover just about everything a true leader must do. To use a metaphorical example, the executives of a national bakery can run the company without ever having baked a loaf of bread — as long as they understand the process and are keenly aware and sensitive to both employees and customers. The conundrum, in the case of our friend’s partner, is that technology is an essential component for every facet of the owner’s job description. THE VISION Businesses are building the future technological block by technological block. Forget the retail side of Internet commerce; think in terms of communication, information resources, and back-end supply chain. Some pundits say that Jack Welch of General Electric blew his chance to retire with a bang when the Honeywell merger fell through. I disagree. Welch has already given GE the most valuable farewell gift possible: an introduction to the Internet. Initially blind to the possibilities of the Internet, gentle spousal coaxing opened his eyes to a remarkable vista of electronic opportunity — not necessarily in selling products and services online, but in using the Web to more effectively manage the business of GE’s far-flung empire. My guess is that GE will save nearly a half billion dollars per year through more efficient Web-based management. By coordinating all travel electronically, the company already saves more than $1million per week (and that’s only one small area). Even if true leaders never touch a computer keyboard, they must understand and appreciate the value of technology both today and in the future. How can one envision a future while ignoring the tools that will build it? EMPLOYEES A friend of mine manages one of LA’s top Hispanic radio stations. When the corporate ownership switched from English-speaking rock to Hispanic, he was soon the only person there who didn’t speak Spanish. Within a month he had a tutor at his office daily, and culminated his training with two weeks of immersion learning in Mexico City. He realized that he couldn’t manage a staff that spoke a language he didn’t understand. We baby boomers grew up in an analog world. The young people we’re hiring have grown up in a digital world. We not only speak different languages, our brains are hard-wired differently. True leaders must acknowledge this fact and adapt to it by rewiring their brains to understand their technosavvy workforce. This wonderful prayer comes to mind: 'Lord, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.' Even if you can’t perform the simplest task on a computer, you need to foster a high-tech environment that will allow your employees to maximize their productivity and usefulness to the company. Encourage their experimentation and support their accomplishments. CLIENTS Here’s the rub: Business isn’t about you, the owner. Business today is all about the customer. A business that lacks sensitivity to the needs, wants, and desires of its clientele will soon be out of business. You, as the business owner, no longer set the expectations of your clients. They already have their expectations — it’s up to you to meet and exceed them! Today’s customers — after their experience from the Internet and from the performance of countless companies — expect speed, expertise, and 24/7 service. A company’s electronic presence and performance is not an optional, value-added benefit; it’s only the entry fee for doing business in today’s world. A wonderful television commercial ran this past year in the Los Angeles area. In the dark of night, a crowd of people began gathering in a parking lot. As they left their vehicles, a look of profound amazement came over their faces as they stared in disbelief at a dark store with a closed sign on the door. Today’s consumer wants you to be there when they need you. And apart from manning offices on a 24/7 basis, the only viable way to do that is with technology. The enlightened leader knows that the true leader is the customer and that the successful business leader is a follower trying to keep pace. THE PROFIT This one’s easy. Unless you embrace the new technology, there won’t be any profit to manage. The dinosaur will merely manage the process of placing the company in bankruptcy court, while others use technology to increase efficiency, better serve their customers, decrease expenses, and create greater profit. A recent study showed that CEOs are no longer taking the long vacations that were common in the past. Most successful CEOs today feel that about five days is the longest that they can be away from the business. The reason: information and change is being processed so quickly, that they’d be foolhardy to absent themselves any longer than a week. Leadership doesn’t mean the leader has a PhD in computer technology or is the brightest electronic star in the business. Leadership means a willingness to embrace change, so that your company can navigate the daily journey of business with the most powerful tools possible. Remember, it’s not about you — it’s about your customers. If you can’t get them to where they want to go as quickly and as comfortably as possible, they’ll be looking for another ship on which to make their journey....